publish service by america's television public company and today we continue to bring unfiltered coverage of congress, the white house, the supreme court and public policy events in washington, d.c. and around the country, c-span is brought to you by your cable or satellite provider. >> next hearing on war powers granted by the constitution and whether or not a new authorization for the use of military force is needed for current u.s. military engagements, senate of homeland security and subcommittee heard from attorneys and legal experts from across political spectrum. this is about 90 minutes. >> had never really been authorized by congress, after attacks by 9/11 president bush did constitutional duty and asked congress, if you read the authorization it's actually very

specific but congress insisted on narrowing the mandate to use force only those who attack us or plan the attack or harbor the attackers, they are narrowly defined to attacks of 9/11. authorization was not given for global war on terror or against radical islamist or separatist or insurgents in civil wars, authorization was not given for associated forces, authorization was specifically directed to people who attacked us on 9/11 and maybe who helped harbor them, period. no one in congress believes that we were voting or they were voting for a worldwide war on terrorism in 20-some-odd countries that would go on for decades and authorization of

wars does not cover countries like africa, middle east and south pacific. the expansion the war on terrorism really has occurred without the required constitutional authorization, senators corker and kaine and others wish to rectify by passing a new portion for force. i don't disparage their effort, their motives are genuine, but really there are two big issues here that need to be fully debated, number one, does it matter who initiated war, our founding fathers suggest that they did, they squarely delegated power to declare war to congress. madison put it this way, the executive is the branch most prone to war therefore the constitution was studied care vested that power, the power to declare war with the legislature. so, yes, it is the job of congress to declare or initiate war and congress has been

negligent for over decade now, congress has not done its job. congress has let president after president strip the war power from congress and concentrate the power in the executive. the second and inseparable issue is when and where we should be at war. it's not enough to say that congress should authorize war, the bigger question is where and when should we fight. our job is not to put congressional on war, the vast and important job of congress is to decide when and where we go to war. the debate that should ensue must ask are we to authorize scats quo, are we to authorize war in all of the seaters that various presidents have taken us or should congress limit scope of war that we find ourselves involved in. here corker came authorization fails us, the corker-kane authorization merely codifies and actually expands the current

theaters of war. corker-kane authorize in over 20 countries. hardly sounds like we will have any less war. equally concerning is that corker came or transfers enumerated power from congress to the president. article 1 section a gives congress the sole pow the other declare war. corker came initially authorizes war against 8 groups but says to the president, hey, you, get back to us, give us an initial list in case we missed anyone that we are currently at war with and if you want to add any associated forces to the list, please send us a report. so this transfers power to name the enemy and it's location from congress to the president, worst yet, that declares war from simple majority, affirmative vote to require a super majority

veto proof vote to disapprove of presidential wars. so if the president fines a new associated force that our military will attack the only way congress can stop that president is now a two-thirds vote to overcome his veto. the constitution has flipped on its head. this transfers delegated power of war from congress to the president, the hearing today is convened to explore precisely that question, can congress transfer the power to declare power to the war. in the context we could discuss the constitutionality and i hope you will have spirited discussion. with this i would like to recognize ranking member peters. >> thank you, mr. chairman for calling today's hearing, i continue to be impressed with your willingness to have the subcommittee tackle the big issues and no issue is certainly bigger than war powers. voting to send our sons and daughters to war is the most

important and the heaviest responsibility that a member of congress bears. we must never forget that while the sacrifice of war is borne by our service members and their families, under article 1 section 8 of the constitution, the responsibility of asking for that sacrifice is ours and yet today our war fighters are serving in harm's way in places that have never been named and any declaration of war and facing adversaries that cannot be found in authorization of military of force. framers and wisdom separated power to te claire war from the power to wage it but mr. chairman as you have observed. the reality is that we are at war anywhere and any time the president says so. we have effectively seeded them to the president. seeding war powers to the president is a way to playing

safe in avoiding declaration of war and keeping forced authorizations vague and malleable, we can blame the president when things go wrong but we must not shirk our responsibility in the wake of political epxpedincy. this is not a partisan issue and nor should it be. congress hasn't declared war since world war ii. president obama did not seek for military force in libya, nor did president trump seek congressional, rather, authorization for military action in syria. the 2001 use of military force against al-qaeda has now been used by president presidents to support combat in countries with no nexus to 9/11 and organizations that didn't exist them. that's why i supported senator paul's effort to repeal the 2001

and 2002 authorizations of use of military force. the world has changed since we last declared war in 1942, adversaries often wear no uniform and swear allegiance to no nation, the technology of war has evolved in ways that would be unrecognizable to the framers, the military can impact world affairs with drone strike remotely from inside the united states. how we authorize war must adapt to the changing threats and technologies but the principle of separation of powers and animated the drafters of this constitution is a as as sound today as 1889. we must reclaim it. i'm eager to hear your views. i want to know more about the cost of congressional inaction

and ideas of re reasserting and i'm hardened and hope we can find solutions, i yield back. >> thank you, senator peters, let me begin by noting that several senators have requested to attend due to interest in important issue, therefore i would like to ask unanimous consent to allow senator sanders and senators lee should they come to fully participate in hearing. our first guest is judge napolitano, following his service, he began teaching constitutional law at delaware law school for two years and he was chosen as student body as most outstanding professor and

authored 7 books in the u.s. constitution and lecture nationality, judge napolitano you're recognized for opening statement. >> there you go. they asked if senator sanders are going to be here. we are die to go see bernie sanders cross-examine you. we agree on everything. you know me as commentator on television and professor at law, delaware law school and brooklyn law school for total of 16 years. i have published nine books on the constitution and much of my work i've concentrated on the separation of powers. we often begin the first day of

constitutional law by asking the students what's the most distinguishing feature of the american constitution, it's the first day of law school, most of them will say freedom of speech, protection of privacy, some say due process but i impose upon them the observation that even the constitutions of totalitarian countries guaranty freedom of speech and privacy and due process but only hours has the strict separation of powers, the structure of the constitution with the primacy in article 1 is profound demonstration of commitment to founders to sacred ideal and senator has argued that the separation of powers and the value and the deal and unfortunately it is not always the practice because presidents have assumed that they can

utilize military force if they think it is popular because the congress will sit back and do nothing and all that is necessary for triumph of evil for good men to do nothing, when the congress look it is other way as it did when president obama bombed libya and when president trump bombed syria, this is effectively an amendment of the constitution by consent, we consent by our silence to the president of the united states usupring the authority that the constitution givestous. if madison was clear about anything he was clear about the war power as the most awesome power the government can wage and it can only be reposed in the legislative branch. the practical reason for that war is a failure when public

support and only the congress has its thumb on the pulse of the people to determine whether war enjoys broad publish support. now, the president and the senate have entered into treaties as enacted statutes which gives leeway. an attack is eminent he doesn't have to wait for the first missile to come and if we sign treaty with ally, the treaty has been ratified and under the constitution, treaty is up there on the hierarchy equivalent to the constitution itself. but does the president of the united states of america have the power to bomb another country which poses no eminent threat to the united states of america, the answer is very clear and it is loud and resounding no. the president does not have the

authority. when members of congress look the other way i believe that what the president is doing is wise, we haven't been asked to get involved. we don't want to get involved. we are running for election soon, war may be popular or unpopular, whatever is going through minds of congresses is not fidelity to the constitution, it is not fidelity to the separation of powers. i was interviewing member of congress whose name i won't mention at the same time we broke to announcement that the president was bombing libya. you're of the same party as the president. what do you think about this, well, the president doesn't have the authority to do this, we all know that. what are you going to do about that. >> probably nothing. >> we are spring break and when

congressional break was over and the president returned from his trip to south america, nothing had happened except that the constitution was weaker and the power of the president was stronger, gadhafi was about to be killed in a horrific way. if gadhafi that was so evil that he ought to have been killed by american forces only congress should have unlearned. madison could not have been clearer. what travels me the most is the preferential value when congress look it is other way. i'm not here to criticize president trump, this is not an argument about politics, this is an argument about principle but he had reason to believe that congress would do nothing because congress did nothing in these other instances in which the president went to war. mr. chairman, i would argue that the aumf's are constitutional

because they don't have end point and unleash the president to pursue for as long as he wants as long as he wishes to do do and i would encourage you to repeal those aumf's but not to replace them with corker or kaine. as you yourself, mr. chairman, have pointed out, at the present time the president goes around the world and i don't mean president trump, presidents go around the world looking for monsters to slay and when it's popular or moral and congress does nothing about it but when this behavior becomes a precedent for futures presidents to do it, when a president in this era can rely on a document of no moral and legal value like the 2aumf's and the congress

does nothing about it, the constitution is being amended by consent. i only have a few seconds left. corker-kaine, look if the congress decides to withdraw funds for military excursion the president will veto act and will require two-thirds vote of the houses to overcome that. the president with one-third plus one in either house can wage war on any target at any time the president chooses to do so. that is so contrary to what madison intended. so contrary to the plain meaning of the constitution, so violative of separation of powers to rejection of oath to preserve, protect and defend the constitution and none of you wants to reject the oath. i look forward to your questions after hearing from my colleagues. >> thank you, judge napolitano.

our next witness professor jonathan turly, professional scholar who has written extensively in area of legal law, has testified before house and senate on constitutional and statutory issues. he has been ranked one of the top 10 lawyers handling military cases, most cited intellectuals and the second most cited law professor in the united states, welcome professor turley. >> thank you, chairman, ranking member peter, breb members of the committee, it's a great honor to come into the commit yes to speak about this issue about the constitution, indeed f there is a sacred article of the constitution it is article 1, section 8. it's not merely a constitutional but a moral responsibility. indeed, the words congress shall have no pow tore declare war

fails to capture imperative, meant to adhere to each member when you raise your hand and you take your oath of office. at the earliest stages of our republic, members began to struggle with this possibility and reget -- regrettably end to that process. the new aumf amounts to statutory revision of one of the most defining elements of the united states constitution. we find ourselves at this moment not by accident but by decades of concerted effort by members of this institution to evade the responsibilities given to them but the framers of our constitution. the result is that our citizens are taught, our children are taught afalse assertion that members of this body will

declare war and have the sole responsibility to do that after all the provision speaks loud throi that, clearly to that, what this does and what past aumf's have done is to reduce the very loud declaration of your responsibility to what mcbeth referred to voices full of sound and fury and signifying nothing. my written testimony details the express intent of the framers. but for every framer, the few points upon which there was almost unanimity because they preferred give entire power to the president of the united states. he didn't receive a second, he spoke to room of framers and made the proposal and not a

single one seconded that motion. that was one of the most important moments of our republic, that silenced the absence of a second shows where we gunmen of conscious and principle who knew that they had the strike the compromise to restrict the powers of the presidency and to give the sacred duty to this institution, it was a compromise but, of course, it's hard to see how that expressed language got us to where we are today in almost 250 years, we've had five declared war, only 11 declarations in declared wars, it actually began poorly, we didn't even get out of 18th century before members of institution found way to get around the duty. when john adams wanted to start the quasi war they put legislation that referred specifically to french vessels that could be boarded. it wasn't declaration.

we weren't out of 18th century before politicians found a way to get around this duty. now, our last declaration was in 1942 and it is made a mockery out of the statement of george washington. in 1793 the constitution vests the power of declaring war in congress and he added this, therefore no offensive expedition of importance, no offensive expedition of importance can be undertaken until they have deliberated upon the subject authorized such a measure. we've made a mockery of that statement, we've made a mockery of article 1 and section 8. now before i mentioned some of the flaws i see in the legislation, i want to know one thing and this is sort of reflects my friend in terms of what he had said, there's a price dependence with aumf, the asthaumción we should be

debating scope and standards on which the president has to satisfy, there's still the original question. many of us do have constitutional reservations about aumf's, if anything the wisdom of the framers has been made evident in modern history, we are at war everywhere always and it wasn't the framers' fault. they hated war. framers despised it and they believed the president and chief executives were inclined towards war. that's why they made this such a clear standard. in my testimony i talk about the problems that i see in this proposal and why i think it's worst than the current aumf which takes quite an effort. i will not go through all of the details about how the new nations or countries are added, associated forces, the shift

from expose action and all fundamental flaws that go further from where we were. i think it's really the signature moment of the law so this body has failed historically to require a declaration, so they got rid of the declaration and then they failed and got rid of the need to specify if the nations were going to go at war against and now about to get rid of the requirement, even the requirement to get any prior authorization. it'll make this body a pedestrian to war and it will put war making on auto pilot. and this law does not have a sunset provision. it just goes on and i could see why that's so tempting to have, it certainly relieves members of the body of the uncomfortable question that do come up but in

my remaining few seconds i will note this, under the past under the former aumf, we have gone through 17 years of war. you adopt proposal and we have 170 more because this has virtually no standards. it will effectively revise the constitution of the united states without an amendment. i've had the honor of testifying before this body also your counterparts in the house many times but today i took a step that i had not done before and i asked two of my sons to come with me, i have four children, my son sons are behind me, they are about draft age and i felt that they should be here to watch part of this process because they may be well asked to pay the ultimate price for the authority that congress may soon bestow upon the president.

if called, i think they will do and i know they will do their duty as grandfather and great grandfather and other people in my family in previous wars. i don't have question about them doing their duty but i have a question about whether members will do their duty and stand within language of the constitutional and show framers that the faith that they put into the body was well placed. thank you, again, for appearing before today and i would be happy to answer any questions that you may. >> thank you, professor turley. our next guest member of civil union. leads aclu advocacy on topics of war authority, detention, torture and guantanamo issues, he has written extensively on the topic of authorizations for the use of military force, declarations of war and separation of power, mr. anders.

>> thank you. we would like to appreciate and no decision by government is graver or consequential than decision to go to war. over the many years since congress passed in 2002 or 2001aclu has dedicated ourselves for defending civil liberties and have been jeopardized by claims of the 2001aumf legal authority or more chilling by presidential claims of article 2 authorities in complete absence of any advanced congressional authorization, these have included the drone killing of american citizens, the kid napping and torture of suspects and without charge or trial even

of american citizen apprehended in the united states. it would be impossible for congress to undoe damage of 17 years of presidential overreach. we propose 3-step process for congress to reclaim constitutional authority to decide whether the united states should be at war. for now, in my oral testimony i will focus on most pressing first step, dr. paul to apply to congress first principle of medical care to do no harm, sj rest 59, the corker-kaine not become law. it's hard to overstate the depth and breath of the dangers of human right that is would be caused by aumf. the damage would be colossal. not only almost see to executive branch the most fundamental

power that congress has under article 1 of the constitution, the power to declare war but also give the current president all future presidents authority from congress to engage in worldwide war sending american troops to countries where we are not now at war and against groups that the president alone decides are enemies, against groups that don't even exist today. the corker-kaine would authorize force to limitations against 8 groups in 6 countries, the president could add to both list as long as the president reports the expansion to congress. to be clear, the president would have unilateral authority to add additional countries including the united states itself to list of countries that congress is authorizing war and the president would have unilateral authority to add additional enemies including groups in the united states itself and even individual americans under it's new authority for the president to designate, quote, persons as

enemies. although congress could bar expansions to additional groups, would require two-thirds majority in both houses given the president would veto legislation to curtail an expansion that the president himself has ordered. every president -- excuse me, for the coming decades would effectively be able to claim for the executive branch much of the power that the constitution gives to congress and gave to congress exclusively. before closing, i wanted to point out a provision with the title section 10 conforming amendment. that -- this provision greatly expands the scope of the infamous 2012ndaa detention provision. in its single section 10 of the corker-kaine aumf would expand detention authority by adding this new aumf for basis for

military to capture and imprison individuals in detention without charge or trial. the corker-kaine aumf like provision itself has no statutory prohibition against locking up american citizens or anyone picked up here in the united states itself. while we continue to believe it would still be unlawful for a president to try detention of american citizen in the united states again, there's no reason for congress to risk it. when congress consider ndaa indefinite detention provision in 2012, uproar from across the political and ideological spectrum was deafening but narrowly passed an president obama signed it and when the president signed it, he made a promise as part of his signing statement that he would not use it against american citizens but that's it, it was a promise. he never said and nowhere did any either president obama or

president trump say, deny that either they or future presidents would have the power to order military detention, the loaded gun was left on the shelf, the corker-kaine aumf would make ndaa provision even greater threat for ciferl lights an rights, while we share frustration, many senators with expansive presidential claims of war authority including senators corker and-kain who he recollects have expressed frustration with that, the proposed corker-kaine aumf would cause more problems than involved. thank you again, mr. chairman for holding the hearing and considering the views. >> thank you, mr. anders because i believe in being kind and welcome to go guests, we will let our guests first and start with senator sanders. >> senator paul thank you very much for holding this hearing and let me thank our panelists

for without exception their testimony. article 1 section 8 of the constitution states very clearly and i quote, congress shall have the power to declare war, end quote. founding fathers gave the power to authorize military conflicts to congress for one very simple reason, congress is the branch of the government that is most accountable for the people. there is no question but that over the years congress has allowed its authority over the very important issue of war-making to it. it is time for us to reassert the authority and to start asking some very tough questions about the wars. i use the wars that we are currently. and some people think it's

abstract distraction, we have brilliant constitutional scholars, wonderful intellectual debate but let me assure every person here that the congress to responsibilities over war has had incredibly dire and horrific consequences for the people of our country and in fact, the world. i want to bring this down to earth and away from abstract although enormously important constitutional discussion. i want to give you three examples in recent american history where congress did not ask the right questions, and very few americans know that when we deal with iran very much in the news right now, how many people know that in 1953 the united states along with the british overthrew the democratically elected

government of mohamed reinstalling authoritarian under and the iranian revolution springing to power an extremist antiamerican government. in 1953 the united states government without congressional approval thought that it could simply remove the government of iran in order to protect wealthy oil interests and what has been the consequences of that over the years? congress advocated its responsibility and the second one more relevant to my generation was the war in vietnam. 1964, lyndon johnson, democrat, cited an attack on u.s. ship in the gulf as pretext for

escalating the u.s. intervention in vietnam. what we you know from own reportings that johnson himself doubted that story about that attack. johnson's administration misled both congress and the american people into a war that resulted in the loss of over 50,000 american soldiers and over a million vietnamese. congress was lied to and no serious debate about american intervention in that war. .. lied to the american people claiming saddam hussein had weapons of mass destruction. the result of that war, the loss

of thousands of brave american soldiers, the displacement of millions of people in the middle east, and bring as to where we are right now. in other words, what we have seen is the time of the gentleman has expired again disasters occur when administrations, democrat and republican, mislead congress and the american people, and when congress fails to do its constitutional job in terms of asking the hard question of whether or not we should be in a war. and i think we need to ask that very hard question today. and here is the point that help the american people are asking themselves. is the war on terror a perpetual, never ending war necessary to keep us safe? i personally believe that we

have become far too comfortable with the united states engaging in military interventions all over the world. after 9/11, congress passed an authorization for use of military force, quote, against those responsible for the recent attacks launched against the united states. the following to congress passed the 2000 you a you met against iran. we have not been in afghanistan for 17 years. we have been in iraq for 15 years. we are occupying a portion of syria, and this administration has indicated that it may broaden that mission even more. we are waging a secretive drone war in at least five countries. our forces right now as we speak are supporting a saudi-led war in yemen, which is skilled thousands of civilians and has created the worst -- has killed

-- queue manager in crisis on the planet to date. clearly these updated and expanded aumf have been used by three different administrations, republican and democrat, as a blank check for the president to wage war without congressional consent or oversight. meanwhile, we are currently quote-unquote fighting terrorism in some 76 countries with an estimated cost of $5.6 trillion, and untold lives lost since 2001. i think it is very clear and our panelists i think made the point extraordinarily well, without exception, at the time is long overdue, mr. chairman, for the united states congress to respect the constitution of this country and to stand up for that constitution, and to demand that it is the congress of the united

states, not a president, who determines whether our young men and women are put in harm's way. thank you again, mr. chairman. >> thank you. we'll next turned to senator merkley. >> thank you very much, mr. chas hearing. and under what authority to each of you you that we are currently in syria taking on isis? judge napolitano? >> well, i don't think we are in by any constitutional authority because like your colleague, senator sanders, i don't believe that either of the aumfs were constitution because they didn't adequately articulate a target and they didn't put in an endpoint. presidents of both parties have used sort of the vague principles that they believe are

emanating from the aumfs to justify the type of incursion you are asking about. >> mr. turley? >> i i see no authority even unr the aumfs, that under the constitution. what it is unfortunately a noble lie, there's been the specificity of the targets which was there for public consumption. this proposed legislation is that same technique. it give some specific references while having provisions that list can be expanded almost at will by the president subject to a retroactive some post hoc action by congress. >> use any constitutional authority? >> no. and at the time that the government made the decision, the obama administration made the decision to claim that the 2001 aumf with authority to go after isis fighters, senator paul, chairman paul had

legislation that was a declaration of war focus on one year on isis, and that was a constitutional way to take on that fight. what they did instead was that they had this very tortured interpretation of the 2001 aumf and applied it to a group that was at war with core al-qaeda. >> the reason i ask the question is three esteemed experts have just clarified that we don't have a constitutional authority, and our armed forces are in this battle ensued. i wanted to use that as we get dramatize what's happened since 2001 in which the was a very precise aumf, very carefully constricted to those who attacked us on 9/11 and those who harbor those. since then it is been stretched and expanded to country after country, organization after

organization. i think you all agree with that characterization of the 2001 being stretched to be on recognition since it is not providing a constitutional foundation for military conduct in these countries. now we are at this point, this point at which it was in 2001 shouldn't allow, be allowed to continue. it's been used so much and we have the corker proposed aumf. i have an impression that when you analyze the details of it and what it authorizes in multiple organizations and multiple countries with the president allowed to add an additional list and that additional list can be added without preauthorization by congress, that essentially codifies the expansion, the stretching of the 2001 aumf. it's had a fair way to describe it?

>> yes. it's a loaded gun. >> yes. >> yes. >> so i -- senator corker who i give respect for having wrestled with the 2001, and senator kaine have try to figure out to replace 2001. they have come up with this proposal which disturbs me for the reasons you all have been sharing. senator corker fairley said so, if you all don't like this, what would you do? mr. anders, you mention, your closing time it you encourage members to consider presenting what could all be done as an alternative. so i present such an alternative. i don't know if each of you is familiar with it but one of the things it does this have a sunset in it so it periodically would require us as the senate and house to re-examine the foundation and the considerations. each of you think a sunset is an

important provision in aumfs we don't have an without reconsideration, reauthorization by congress? >> a sunset is certainly helpful because it compels the congress that representatives of the people periodically to review what the president is doing in their name. my own view would be legislation which simply says the president shall not use military force, military or civilian, because presidents use intelligence forces and thereby bypass the war powers resolution. >> my time is going to run out. >> i did mean to take -- except in accordance with the constitution. >> mr. anders, i know you've seen what i put together to try to very tightly constrain just the two countries and three forces put what a three-year st on it and required any expansion of that by the president including expansion of ground

forces to require preauthorization so we have constitutional vision representative aumf. any insights on whether that put us more clearly on the track and vision in a constitution? >> we are really pleased with how you put together your aumf. we don't take a position, aclu never takes position whether the united states should be a war against a particular country or group. in terms of how it fits with the constitution separation of powers, the aumf you put together it's very well. it's up to congress and to make that decision on do we want to be as a as a country be war wih these particular groups and particular countries, but in terms of feeding into a constitutionally more, yes, it does. >> i want to note that some of you pointed out that members of congress are uncomfortable having to make these tough decisions. and so it's easy to take what

was vested in congress and deliver to the executive and let them take the heat. i find it unacceptable. i find this inversion and because addition, this proposed inversion which the president can go at forces with new countries, new organizations, deciding on his or her own whether or not it needs a test that is in the aumf, and the congress would have to come around after our forces are deployed and get a super majority of both chambers to close the door, something that nobody thinks congress would ever do. so in some we end up with a wholesale transfer of our responsibilities carefully crafted. it's tough for us to make these decisions but it is our responsibility and it is why we need to craft a replacement aumf that honors that vision of the constitution and makes us have the tough debates in the tough votes. thank you.

>> senator udall. >> thank you, mr. chairman. really appreciate your calling this hearing and having these experts for us. mr. anders, i asked the following question to secretary pompeo over at the foreign relations committee and wanted to get your perspective on this. put him to the chief of staff of the army general milley reminded this result in an appropriations hearing of the nature and character of war. the traditional ideas that were at its base is an extension of politics. taking an expansive view of what congress approved on 9/11, the political objective is to stop terrorism at a broad level. however, a more restrictive view and the view that was sold to

congress when i voted in favor of that 9/11 aumf was that we aim to punish and deter the perpetrators of the 9/11 attacks, specifically al-qaeda and the taliban. which you can you believe is the correct one? >> that's easy. i think it's the narrower view. i think congress at the time worked hard to come up with specific language and there was a back-and-forth that has been reported on quite a bit. it was reported on at the time between the white house and drafters in congress on coming up with that language. the part that is frustrating i think for all of us now is when we talk about new aumf, talk about the need for specificity and many your object is an enemy. it's hard to see the 2001 aumf could not have been, could have made more specific than it was in terms of naming what the objective was and who it was

that the united states was going to war against. then what it was. the only shortcoming in it was given that the united states at that time didn't know the exact names of who it was we were at war with, it didn't include the exact names but other than that i think it's pretty clear that it was for al-qaeda because of the role in the 9/11 attacks and the taliban for harboring them. >> one of the restraints on war was recently put in a commentary by cornell, , the author of new book called taxing wars, the american way of war finance and the decline of democracy. she would makes the point that when you have attacks on war, you are involving everyone. edwin understands that society as a whole is backing this war.

and so in the distant past we pay for war with war taxes the more recent members of congress have proposed these taxes to raise public awareness about the cost of war and to share the sacrifice beyond a small percentage of americans who fight in these wars. what do you think of a proposal for a war tax, other then, and i know digging as deeper into debt? >> i do think the bigger point of having the country have a greater investment and greater knowledge of what the cost of war are. one of the problems that we've had with the lower cost of war in terms of american lives and american treasure is with the use of drones and new technology, is that a lot of the obvious cost of wars are not

apparent, focusing in on what the financial cost are would be a helpful way for people to have a better understanding of the full extent of what this actually means. >> i think you would end up having a debate about whether or not to commit ourselves to many of these very dangerous situations. along that same line some people, when i go home and do town hall meetings and for my constituents, some have asked why are we not seeing people in the streets like in vietnam or antiwar activity on our campuses? the answer i always get is there is no draft. should we read look at this? do you consider a draft a check on foreign wars? >> in the past, so i've been there 20 20 years, we've had at of concerns historically about a draft in terms of its impact on civil liberties and also in

terms of equality and who is subject to it. so that's not a proposal that we are supporting. >> e office of legal counsel recently released its legal justification for the strikes in syria. the memo states the president identified three interests in support of the april 2018 syria strike. one was the promotional regional stability. number two, the prevention of the catastrophe and three, , the deterrence of the use and proliferation of chemical weapons. the olc relies on the president article ii authority, and as harvard professor jack goldsmith said, justice department now officially and publicly believes the president can use significant airpower without congressional authorization on the grounds of humanitarian intervention and deterrence of use of chemical weapons. i find that olc opinion extremely alarming.

do you agree with the justice department that these strikes can be justified via article ii authority alone? >> as disturbing as some of the claims made based on the 2001 aumf have been, that opinion, may 31, 2018, opinion on strike on syrian targets and the april 1, 2011, opinion during the obama administration from the legal counsel on the air campaign against libya are chilling. they both are essentially the president claimed for himself the war authority that the constitution gave to congress alone. they are very expansive claims, and i think a lot of us thought that the libya opinion was about as aggressive and as expansive as one could be. that was only topped last week with the war in syria. i think it's a challenge for the

senate to figure out how to use the legislative process to pair that back to invalidate those opinions and those relying on them, but ultimately that will require also use power of the person cutting off funds for unauthorized military campaigns. >> chairman paul, thank you so much for this evening. >> senator lee. >> of what you think senator paul for organizing the scene and want to thank this review for your willingness to come and offer your expertise and the insight you've offered today which are helpful. we are in our 17th year of deployment under the 2001 aumf for the use of military force. it is not the case that are most junior personnel deployed were not born as of the moment that 2001 aumf was issued by congress but it will soon be the case. long before it's even fathomable we will have retreated from his battlefields it will be the case

that this aumf is issued before they were born. in the meantime, we've got some issues to deal with. we have spent $2.8 trillion and these efforts under 2,012,002 aumfs and there's not a lot of accountability that comes before congress to continue to look the other way -- 2001, and 2002 -- consistent with those over one or 02 '02 aumfs without having additional discussions on what exactly were doing. on why you with blood and treasure should be put on the line. so instead of people elected reps to debating discussing the things in real-time, these issues have been left to the will and the whim of a small handful of political elites in washington, d.c. this is scary and it's contrary to the text and the structure and history and the condition underlying our constitution.

so it's one of his what i welcome this hearing and why think we need to have this discussion. i've got a few questions. we'll start with you, mr. anders, earlier this year members of congress received a letter from the department of defense relying on a 1975 argument suggesting that the only time congress has an indispensable role in authorizing u.s. forces to be deployed is when deployed units of u.s. forces are on the ground engaged in a kinetic exchange. do you agree with that, , and if not, why? >> no, we don't agree with that, and that's personal it's the role of congress to provide at their exclusive authority to provide authorization in advance before a a military engagementn the absence of a need to refill a sudden attack, , that's the constitutional standard.

>> it's often not how we fight wars today. there's lots of warfare that were engaging today that doesn't necessarily involve a kinetic exchange between people on the ground. >> that's right. this again is something that began during the obama administration, this definition of what hostilities me under the war powers resolution. and what the position that obama, president obama eventually took was hostilities did not include airpower in the absence of ground troops. that of course means that lots of places, as you just referenced, where the united states is at war are not considered hostilities. and, therefore, the war powers resolution, which includes deadlines withdrawing in the absence of congressional authorization, don't apply.

so with that opinion from harold koh, then the legal legal advio president obama, executive branch hurting much wrote out of existence a good part of the war powers resolution. >> which is of concern to many of us here and thought to be more so that it is within congress. professor turley, as you know it's well understood at the time of the founding and was made and it isn't based on how the constitution was written that the president, unlike the king, would not have unilateral power to go to war. in fact, hamilton makes this point in federalist number 69. when people people talk with immense power invested in the executive to deploy military personnel, from what source are they claiming that authority exists? >> there is no source. the interesting thing about this particular provision in article 1, section 8 is it was viewed at the time as the defining work at

the convention. you might framers who joined together who were normally not in agreement and said this is how we can address this. they all agreed that they didn't want a a situation like the one have today where a president as this type of unilateral authority, and the belief they had fixed the problem because article 1, section 8 could not be more clear. twofold of this back to the question you asked my colleague, the definition the president, this kinetic conflict, was used in litigation that i lead a map of democratic and republican members. the obama administration came forward when we were challenging the living wars, and undeclared war him and came to and said it's not a poor by our definition. when we had that argument they went further than that and they said the president alone defines what war is.

we presented it to the court and said this at track with you? you honestly think that the framers put this specific of an obligation, spent this amount of time, and it all comes down to a noun that the the president is simply allowed to define? by the end of the litigation, by the way, i had i have no bettea of what kinetic means in were times than before. >> image or hitting soft. >> i guess so. it got to the point of absurdity, and this is all an effort to avoid clarity. you try to change the noun if you can't deal with the obligation. >> to avoid clarity, that's a good description come to avoid clarity in a place where morality, decency and justice which seem to demand clarity and where the constitution provides clarity. judge napolitano, , i want to tk to you about the associated forces doctrine. executives from both political parties for decades now have

used this as justification for a number of military operations. when i read the text of the 2001 aumf, it seems somewhat clear to me that it covers a fairly narrow scope of targets to include quote those nations and organizations or persons that he, keeping the present, determines aided the terrorist attacks that occurred on september 11, 2001 or harbored such organizations or persons. can you explain the limits of this aumf, meaning what groups or geographic regions the u.s. could legitimately go into under this authority? >> senator lee, i argued the aumfs him both of them, 2001 and 2002, are unconstitutional because they failed to include any point and that's the reason why have this ring today because presidents have used these to go wherever they wanted to go. george orwell addicted all of

this when he said words with determined liberty. if the president can define war rather than the congress defined the war, he or she will define it in a a way to facilitate hir her use of it. at one point the obama administration argued that the use of intelligence forces on the ground who were not wearing uniforms with insignias on thin is not the same as military forces on the ground. they looked a little different because they didn't shave everyday but they were carrying the same type of offensive weaponry with which to kill people that had not been authorized by the congress. so the use of the phrase associated forces and permitting the commander-in-chief to define what those mean, used this phrase early with senator merkley, is like justice jackson said in the cincinnati of korematsu, as loaded gun and a desk drawer of the present ready

for him to take it out and shoot it, whenever he wants. >> i i see my time is expired thank you, mr. chairman. >> senator peters. >> thank you, mr. chairman. gentlemen, thank you for your testimony today and an interesting discussion but i wanted to take my time and this is something that is happening today and get your sense of what you are seeing and your thoughts. today the senate is starting debate on the national defense authorization act for 2019. the bill that was before us includes a provision that will allow the secretary of energy to pursue development of a low-yield nuclear weapons without first receiving specific authorization from congress. i voted against this as as a mr of the armed services committee and it strikes and chroma requirement that a new low-yield nuclear weapon be, quote, specifically authorized by congress, and replaces it with a

provision that will allow the secretary of energy to decide on his own, whether or not to go forward. is the provision that struck was a limitation the congress put in place about 15 years ago to ensure that the legislature and now the executive branch -- not the executive branch would make it highly consequential decision. i would argue if members of congress think arsenal needs of low-yield nuclear weapon we should debate it, authorizes and in full view of the american people as existing law requires. instead some are trying to change the rules to other executive branch to make decision without congressional approval. i think that's fairly clear. for the panel what are your thoughts and is this appropriate delegation? >> in my view senator peters it is not what i commend you for your vote and for your understanding. the point i try to make in my initial comments was it is often the saddle and unseen passage of

power from the congress to the president that comes back to wreak the most havoc. quite frankly as person monitors of this, i was unaware until you discuss this just two minutes ago that this is being debated by the senate today. this is profoundly hideous and hardly unconstitutional, that bureaucrats in executive branch would have power that madison and company expressly gave only to the congress. >> any others? >> i would simply add that i do find it very problematic in terms of using the appropriations process as a substitute for an authorization and a full debate. you have two former house pages here. we won't tell you the years we served, but you can look it up because when i was house leadership page with the debate over the neutron bomb, whether to allow the neutron bomb to be

felt or whether it was a new type of weapon that would make nuclear war more feasible and, therefore, more likely. i stood on the house floor listening to the munk debate that went into the earliest hours. as one of the most found experiences of my life, and i came away with a deep respect for members on both sides that spoke honestly, directly about the consequences and the issues behind that type of weapon. i remember thinking as a young page that this is a pretty great place when we debate whether we should do something, not whether we could do something. and what implications does it have not just for us but for the world. that's a debate that if think you should always want. the of the point as did mention, in my testimony i talk about problems that would having not just for the failure of congress to carry out its duties under article 1, section 8 but it's collateral failure to do with its obligations on the

appropriation powers. when we litigate against the libyan welcome one thing people didn't realize is that what was completely paid out of loose change. congress never appropriate money for the libyan war. we did an entire war that was paid for because congress get so much money to the defense department they can actually have a war based on the money you give them and don't commit to. so the fed is on both sides of this issue. >> i appreciate that. i'm going to ask you to answer a little different question but picking up from this debate on nuclear weapons and the consequential nature of the ny congressional input and debate is essential and it seems both of our previous witness would agree with that. i spent a great deal of time thinking about the future of warfare which was going to change in absolutely dramatic ways. i intimately involved in self driving cars and autonomy of things that are happening in the

scope and driven by artificial intelligence, machine learning. we are going to have, the face of warfare will be radically changed the next five to ten years. i think it raises some profound issues certainly of morality and ethics of what we're dealing with but also some significant policy issues and perhaps a view of what congress involvement should be given the fact that this technology is changing rapidly and our adversaries may not the bound by the same types of constraints that we have here. just want to give your thoughts, what should we be thinking about in terms of war powers given the fact that technology will be changing dramatically and in profound ways? you mentioned about that earlier, mr. anders, would love to hear your thoughts. >> this is one place where the need for specificity, the need for control of the need for limitations put in at the get go is really important. i think there are places or that

are instances where members of the foreign relations committee have come up with various amendments to various aumfs in front of them limiting some of the operationally what can be done in different theaters of war. i think more fundamentally limiting the geography, limiting who the enemy is articulate important. -- particularly important. going back to the question about the provision today, i think if congress hasn't learned anything over the past couple of decades other than when it is a one-way ratchet wrench with turning in kind of authority over to the executive branch, if you provide

discretion to the executive branch are not getting it back. and so the starting point for authorization of use military force or declaration of war, or any kind of new weaponry, ought to be controls imposed by congress. and if later on those controls need to be loosened, then loosened them. but the greater and a tighter control you put on from the start, the more likely it is that congress will retain that authority. >> if anyone had a quick thought that i would entertain that. >> fully agreed. >> thank you. >> thank you, senator peters. it was mentioned earlier that our soldiers within the next year will actually have been born after 9/11 and have no memory of it. we've been it wasn't long. many in the audience today is young enough they may not remember 9/11, and it's not as it wasn't something profound and

that we needed to respond but we are still a were anything we lost our mission. i asked secretary pompeo when he was before us, is there a military solution to afghanistan? he frankly said no. he is one who still wants to stay. my question, if there is no military solution, why would we add more troops? i'm reading a book about afghanistan and pakistan, and in the book and 20 can the obama administration admitted there was no military solution. in the book there is a discussion and it says unanimously everyone agreed it was no military solution in 2010. we have to wake up and do something. that's part of what this hearing is about but is false about the constitutionality of authorization to use force, a declaration of war. i think it is important we review these again. i think there are one, possibly to recent like this is unconstitutional, and we will start there. it delegates authority that is congressional authority given by

the constitution to congress to the president. why don't we start with judge napolitano and professor turley and say, how is that unconstitutional? is there a possibility that we can go to court? is her evidence we've ever had a delegation doctrine overturned were congress delegated some other authority who were not allowed to do? judge napolitano first. >> well, professor turley is the countries expert on getting cases into court what it seems impossible because it looks like there's a stand but he manages so i will let him address that. but the supreme court has held countless times that just because the branch of government that is losing the power, consents to the loss does not make it constitutional because the separation of powers doctrine was not written to preserve the prerogatives or the hegemony of the three branches, but rather to preserve human liberty by keeping the branches at tension.

madison even said jealous of each other. the problem of course is getting the court to examine this. there have been some examinations but there are few and far between. professor turley is an expert on that because most of the time the court will say particularly with respect to war, talk about congressman to the fda you can make all the regulations you want about toothpaste. we're talking about with respect to war. the court are more likely than not to say that is a political question. if you don't like the work, elect a new president or congress that is more faithful to its oath to uphold the constitution. but just because that our passes from legislative to executive with the consent of both does that make it constitutional. in fact, the court authorities of each branch -- core -- not be exchanged, mixed or co-mingle with either of the other branches. the court record anything, it's clear on that. >> professor turley? >> thank you very much.

there is this strange anomaly which is the large gratian of the judiciary that exist today. most people when they learn, if something is unconstitutional in the courts have a chance to review it. so the sense is that the checks and balances work in the system because no one can interact alone. unfortunately that's not true because the courts have developed narrowing standing doctrines that i've long been a critic of. you can have glaring unconstitutional acts where the court will not recognize anyone as having a right to raise them. so, for example, in the living war case, i can forward both democratic, republican members and said we take an oath and that oath includes to uphold the constitution which includes an obligation, i a sacred want to declare war. we were denied that right and so we have standing. >> is a a standing up from at every level, district court,, appellate court and at the supreme court?

>> it is. the court on that occasion said no. when i pressed the court, we have here an immaculate violation of the constitution. literally no one can stop an undeclared war. even though the framers considered this one of the great violations, this sought to avoid. when i went back to the court and represented the house of representatives as a body, the was a fierce level of litigation but we won that standing battle. the court accepted that as a representative of one of the houses my clients would have standing. i really believe that -- >> did it go beyond the district court? >> and went to the court of appeals and it was proven moot because of the changes speedy you didn't lose him standing. >> we want on standing at that thankful is still there, but i believe legislative standing with saw a lot of this problem. if members of congress would recognize as having skin and again. >> it like it's overwhelming

within the federal court structure that both precedent and if any is all of a sudden there was a majority of the supreme court to set a new way of understanding? >> that's not impossible. this integration of the course and it can be undone by the courts but it is not working. >> in hampton versus the u.s., they set forth like a lot of things the supreme court does, you are not supposed to do something, you can do it if it is reasonable. we get all this extra doctrines added in which basically dilute what you were not supposed to do once upon a time according to the constitution. they said you can't delegate your warmaking authority but you can give that some of it if you have an intelligible principle upon which to act. has there been further decisions in that vein? is that a last standing president the first this goes? are the other court cases we can look to construct of in this? start with professor turley and then judge napolitano.

>> i think there is some reason to be hopeful come take her in the war powers area but also more generally -- >> in terms of separation of powers provided on a testifying in the course it confirmation and one of the things i said about justice gorsuch as a nominee is that he had a a cern refreshing understand of the separation of powers, and some people view as a textualist in that sense. but we really can't change the center of gravity and move it back towards the legislative branch. right now we have dangerous instability, and so far madison, you will never be say this in a given day but i will save you. madison may been wrong. he was proven wrong by members of this institution we said that ambition would fight and patient people in you all would be jealous over your inherited authority can we let anyone take it away. but this institution has shattered that assumption. >> there is an patient, it is just misplaced.

maybe madison meant kurds because congress has lacked the courage. those of you here today have the courage to say to the executive jeff to stop. i mean the most frequently cited, until recently, just as in american history, benjamin cardozo once said where there is a wrong there is a remedy, except when the president wages war and there is nobody who can get into court to challenge them. professor turley is living proof of that but we've had some unique successes. congress has to write the legislation, whether it's on standing our weather it's no president shall engage in any act of violence, whether by people in uniform or not, except in accordance with article one. it's easy for us to deflect and say the court should last standing of the question fixes when in reality we probably need to look in the mirror and aggressively use our ambition to take our power back. on the question of constitutionality we talked about the delegation, giving up

authority was constitutional given to us. there is a slightly separate issue that goes to constitutionality as well and that is changing something that is, can only happen by positive, affirmative vote of the majority to something that can only be stopped by a two-thirds vote of disapproval. the way i think it's important look at this is on spending bills. congress is supposed to spend bills. it has to be a majority. it would be like us saying to the president you can spend all of the money and only way we can stop you from spending the money would be by a two-thirds vote. who in the world with a that was possibly constitutional? my question is this, is that separate, i separate constitutional issues and ideas delegation of authority? what we are doing is switching something, switching the constitution certain things that are done by majority vote

affirmatively and almost everything is a photo but there are some things that are super majority. are we not just changing the constitution? it's not a delegation but a change in the mechanism and the way that the constitution works? >> certainly a change. the constitution is quite clearly you need the authority of congress to go to war. this proposal gives you a post hoc measure which we all understand will never occur. it's going to be very hard to get at vetoproof majority to take the name of an accused terrorist group or nation off that list. it's going to be virtually impossible to do that but it doesn't even matter how you feel about the logistics for the likelihood. it is in direct contradiction of the constitution and it's a bizarre notion and he said, if my two boys said instead of asking for the credit card, just giving my critical and you can stop me when you sixpence is get you high speed is and isn't that what happens? [laughing] >> i think we would go that

wouldn't be a smart idea. what is what about all this is the framers were right that everything would talk about now, proves there were right. you're right about war, to write about appropriations. they really did know about human nature in that sense. >> look, the imposition of a super majority is propelled unconstitutional. the questions getting a court court to declare it as such which is nearly impossible. >> or ascribing it back have another question but i can't go to edit what it to see if senator peters had any last -- velasco helen to bring something mr. anders brought up and it's an important point i had not thought of intellect make a statement. one, it's a problem that associated forces are out there and the president will define what they are in the future and we can only stop in with a two-thirds vote. it's also an interesting question that you bring up the associate forces are not defined to be for enemies necessarily. it could be a domestic group that you don't like that could

never associated forces. you can see how this could be a variety. you can really imagine groups,, local into all the imaginings of which group. they could be domestic groups associate forces and your point is that the indefinite detention of citizens that has been legalized to the previous defense authorizations could then be applied to vast groups of americans. could you make that a little more clear for us and explain exactly what you mean by that? >> this is a problem with the corker-kaine aumf, our problem with the ndaa, a problem with the detention provisions becomes a problem that the senate by vote refused to fix, despite the votes of people sitting on the dais, voted to protect american citizens. but there is no prohibition in

the corker-kaine aumf from designating an american group, american citizens, and american individual from being an associated force at the president could decide on his or her own companies in any of the united states. similarly, there is no prohibition in the corker-kaine aumf from designating the united states as a place where military force can be used. we take it for granted, more limited than the legend around it, makes it seem speedy limits federal officers or the army from operating domestic? >> that's why, for long for the purposes. >> who is the army and whose intelligence officers or homeland security, , police, are the army, limited?

>> that's right. but in this instance there's nothing in the corker-kaine aumf that says that the united states cannot basically become a battlefield. this is something that came up during the debate around the detention provisions in 2011 with senator graham going to the senate floor saying that the united states can be a battlefield. this is a real problem, and there have been united states citizens that have been drowned, accidentally, on purpose, as you know, mr. chairman, there are then united states citizens that been put in indefinite military detention. these are not theoretical problems. this is one aspect of course of our bigger problems with the corker-kaine aumf, but this is one that a think, especially as

we noticed it was tucked in there with this and oculus name just saying that these provisions of the ndaa forgiving amended by adding the name of the new aumf into it. it's a broad, new authority that will be handed over to the military. >> i know judge napolitano has a plan. if you want to escape religious get but i know senator sanders had a few more minutes of questions that i will leave it at you if you stay or go. >> very briefly. i apologize but had a rescheduled me i had to be at. thank you very much for your excellent testimony. let me ask you this question you may well got over it when it was in the room. when we talk about giving the president today virtually complete authority, if we read in the paper, the president decided to bomb simply struck him no one would blink an eye. you talk about the presidential,

precedential impact of allowing presidents to do this. what does that mean above and beyond laws, above and beyond obligating the constitution of the united states, what does it mean to our quality of life in this country? >> i think it's the fact we're having this kind of a conversation about whether the president could kill americans and american of what the president can engage in perpetual war or matter how noble people he said that cause is, speaks volumes about how low we have sunk with respect to culture, orality, and for diddley to first of the constitution, senator sanders. >> okay. >> i think that there's really a twofold problem here. one is that benjamin franklin as you i'm sure we call at the convention was asked by, what

have you brought. >> did he really say that? >> that's a fact. i don't want to -- >> only jonathan place that actually happened. >> and he said it's a republic, you can keep it. that is the problem with being in perpetual war is that my boys have never lived in a country that has not been at war. both of them have literally never spent a day of their lives when we have not been at war. it becomes a natural state. the example of that is one of the most chilling things i saw in my lifetime was when eric holder went to my alma mater law school to announce the kill policy of the obama administration, said ignatius was not asserting the right to kill an american citizen on the presidents sole authority without charge, without conviction that he believed he had that before there was inherent in article ii. instead of having any objections, a roomful of leading law professors and judges

applauded, applauded and attorney general say the president has inherent right to kill energy. the reason this is dangerous, take a look at the policy opinion we talked about recently. in the olc opinion that argued the president had unilateral authority to go to war without the approval of congress because of course historical loss of past wars. what has happened is this body, because it has acquiesced for so long, that is now being used -- >> the precedent that are using. >> that's right. >> senator sanders i was struck by something you said only which was talk about what this is like what this is all about in reality as opposed to three. i do think that one of the dynamics around this discussion about putting together new aumf is this a become kind of a lawyers game about law. it's like one big logic game. it's telling here although i don't want to be -- the three

letters on this panel, the one, literally one here in front of the senate foreign relations committee two lawyers and their, the earlier versions of this which came out of civil author blog writers and thinkers there, there were panels both in-house and assent earlier that were all lawyers on those, right? a lot of it just gets tossed around as well, we haven't done this in 17 years, so how do we rearrange the words on the page? right? when you do things we've been trying to bring home to people talk about the corker-kaine aumf is without even going to new groups, it has al-shabaka and somalia, right? i have a 16 year old, all right? i want my 16 year old going to war against al-shabaab in

somalia? my son probably can't find smalley on a map and probably very few people in this room know al-shabaab is, right? but this is basically congress, that's not even what the president comes up with. this would be congress saying the united states and go to work against al-shabaab in somalia. that doesn't mean sending a drone here and there. that means if the president wants to send 200,000 troops and go all out house to house fighting as we did in afghanistan and iraq, we could do that. >> my time -- senator paul, thank you very much for calling this. what i heard was just very important and what to think all three of you for your efforts. thanks for being a all you are doing. >> to put a human face on this, you might ask the families of the four soldiers who died in molly chasing herdsman, she would discuss whether we need to

chase that herdsman, , what is there a national secret he was? what kind of what is going on? with no hearing on a war in molly. prominent member of the armed service committee in the senate said mali, i did know we are thousand soldiers there. that's very worrisome at the people who are supposed to be informed, supposed to be baiting with our sons and daughters died in foreign wars are not even debating it at all. we are completely abdicated it, and it is a bipartisan group of us would like to grab it back that i can tell you we are in the minority. we'll finish with this last question. the majority of the senate, i think senator sanders would agree, actually do believe in unlimited article to a source of both sides avail. maybe more so on my said that i but even some on other side of the aisle believe there's unlimited article ii authority. in fact, they say that my for this said many times, that the only check with his power of the purse. i said that's one check but

that's not come with a check on the initiation of war and then on the continuation through spending. it virtually impossible to stop funding and worries over there because people say you will not fund, you not give them the arms did themselves, how can you do this? even in vietnam which is so incredibly unpopular, funding, i think there was finally a vote in committee, senator leahy was there and he tells the story about being there and voting, like 70-four -- 7475 7475 on te with the courage of one committee to vote to stop funding. my question is, is there any historical evidence that our founders believed in unlimited article ii authority that the declaration of war was just this, is not an anachronism that the founding fathers did not find to be important? >> is a a short answer. there is no evidence that the founding fathers believed in unlimited article ii authority

and there is an abundance of evidence which professor turley characterized in his opening statement that they did not. >> are plenty of systems that give that type authority. the framers were quite clear to the contrary. this is one of the few areas where the wasn't much of a debate. my case there was a single person who is suggesting this view that a president should have this authority and he didn't get a second on his motion. and so my preference is that if you want to gut article 1, section 8 him article 1, section 8 do it. but don't blame the framers and tell you again it's in compliance with the constitutio constitution. >> so madison has gotten a lot of attention today, , so just to put at thomas jefferson, i give them a little airtime -- >> this is where i cut off. >> he wrote allocation of war powers provides an effectual check to the dog by transferring the power of letting it lose an

executive to the legislative body. >> i think this is been a great hearing. thanks, everybody for coming, and if were still at work 17 years and now, if cain corker-kaine passes, let them know at least some of them were warned. >> thank you, senator. >> it's a pleasure, johnny, a pleasure. >> thank you. [inaudible conversations] [inaudible conversations] we will take you live to the floor of the u.s. senate for what is expected to be a brief pro forma session. lawmakers are out for the fourth of july holiday. no legislative work is scheduled. they will return next monday at

3 p.m. eastern. life now to the floor of the senate.